As much as it may have been the wish of some signatories of the Rome Statute of the International Criminal Court (“Statute” or “ICC”) that member states immediately accept, and / or comply with, ICC arrest warrants – that is simply not required.
Leaving aside the precedence of member states not arresting accused leaders wanted by the ICC, such as: Mongolia not arresting Russian President Putin; and the failure of South Africa and numerous other states to arrest Sudanese President Omar al-Bashir, despite several ICC warrants; the fact is that automatic enforcement of an ICC arrest warrant is neither required nor expected under the Statute.
Indeed, the “timeline” depicting the ICC’s futility vis-à-vis bringing President al-Bashir to The Hague, is illustrative of that very concept, despite the Court’s numerous requests.
Without being too “lawyerly”, the fact is that the Statute’s arrest warrant enforcement power is subject to Article 86, as well as Articles 1, 58 (5), 59 and 87-99.
That is, aside from a need for a specific written request from the ICC, a state’s domestic law and international obligations can be paramount and can supersede the ICC – which is, after all, as set out in Article 1, a court “complementary to national criminal jurisdictions.”
Thus, assuming that PM Netanyahu or DM Gallant travel to an ICC member state, both the ICC and the requested state would need to comply with the required Articles – and, in making a final decision, the state’s obligations and values and laws can trump the ICC.
Therefore, what is required is a thoughtful, well-researched letter that sets out how the prophesized politicization of the ICC – especially with respect to Israel and the so-called “Situation in the State of Palestine” – has come about, and the need for both member and non-member states to disassociate themselves from such misconduct.
